Monthly Archives: June 2020


In Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo, Professor Claudia Flores takes on the timeworn cliché of the proverbial “bad apple” who acts aberrantly and out of cultural context in the workplace, as well as a host of other over- and under-simplifications of elusive, pervasive workplace issues that result in the imprudent adjudication of disputes.

She begins from a very simple premise: while sex discrimination and harassment may be rife in the American workplace, there are too many structural and other impediments for any kind of meaningful, large scale individual ability to vindicate one’s rights completely under Title VII. She writes: “Complaint-based employer policies, contractually-mandated arbitration agreements, time-limited administrative exhaustion requirements, and narrow judicial interpretations of actionable conduct have created a myriad of barriers to workers seeking enforcement. For women (and some men) targeted by harassing behavior it has often been too costly–financially, professionally, and personally–to navigate a system that depends almost exclusively on individual complainants to prompt social reform.” (P. 85.) This is all too true. I often posit to my own students that society depends upon the “ripple effects” of Title VII.  The statute’s sheer existence and awareness of it as it has pervaded the news and popular culture—recall the 1980’s, during which many situation comedies had “a very special episode,” in which a character encountered sexual harassment.  Title VII’s ripples operate to chill offensive behavior in the workplace in a way in which individuals’ access to the courts to vindicate their rights simply does not. Continue reading "Post-Sexist?"

Old Frauds in New Fintech Bottles

Christopher Odinet, Consumer Bitcredit and Fintech Lending, 69 Ala. L. Rev. 781 (2018).

The COVID crisis has starkly revealed the thin line between middle-class status and destitution in the United States. As a Greater Depression looms, vital assistance from the federal government may soon expire. At that point, the unemployed may need to seek loans for necessities, ranging from rent to food to health care. Advocates for a “public option” in finance have pressed ideas like postal banking or “quantitative easing for the people,” to enable direct government provision of lending for those the market is not serving. They have met a wall of opposition, particularly from libertarian advocates of cyber finance. The tech solutionist alternative is simple: instead of direct government lending, let new financial technology (fintech) companies accumulate more data, and then they can precisely calibrate optimal loan amounts and interest rates. Algorithmic lending, cryptocurrency, and smart contracts all have a place in this vision.

Christopher Odinet’s important article Consumer Bitcredit and Fintech Lending challenges this conventional wisdom, demonstrating that some fintech business models rely on deeply predatory and unfair treatment of borrowers. Through both qualitative and quantitative analysis of over 500 complaints from a Consumer Financial Protection Board (CFPB) dataset, Odinet paints a grim picture of fintech malfeasance. Cyberlenders may be a route for financial inclusion for many—but they also pose risks that are poorly understood, and nearly impossible to protect against. Continue reading "Old Frauds in New Fintech Bottles"

The Bereaved Should Not Be Preyed Upon: Can the Tax System Help?

Victoria J. Haneman, Tax Incentives for Green Burial, __ Nev. L.J. __ (forthcoming, 2020), available at SSRN.

Dealing with the death of a loved one is one of the most stressful and debilitating experiences in most people’s lives. As Victoria J. Haneman summarizes some key empirical insights:

“After a major loss, such as the death of a spouse or child, a third of survivors will suffer detrimental physical or mental health issues. One-quarter of surviving spouses will suffer clinical depression or anxiety within the first year of loss. Grief is frequently accompanied by weight loss, anxiety, despair, hypnagogic hallucinations, temporarily impaired immune response, disorganization, and/or disorientation.” (P. 41.)

Setting aside the emotional turmoil, how do Americans deal with the practical side of these inevitable events? Not well at all.  Vulnerable people are always the target of unscrupulous grifters – such as Ryan O’Neal’s character in the classic film “Paper Moon,” who exploits grieving widows in the Depression-era Midwest – but the bigger problem is that the nominally legitimate “death industry” (in Haneman’s preferred turn of phrase) has at best a mixed record, often overcharging and upselling stunned family members who have much more important matters on their minds. Continue reading "The Bereaved Should Not Be Preyed Upon: Can the Tax System Help?"

Resistance is Not As Useless As We Believed

Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN.

“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.1

Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering:  that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice. Continue reading "Resistance is Not As Useless As We Believed"

The Cigarette and the State

Until the early 1980s, my high school had a smoking lounge. It was a medium-sized room off the lobby with some beat-up furniture where students could hang out, smoking their Marlboros and their clove cigarettes. There was even a king and queen of the smoking lounge, pictured in the yearbook alongside the prom’s royal court.

Today such an accommodation of smoking is unimaginable. Indeed, in most states, it would be illegal. In the past forty years, the United States transformed from a society where the cigarette represented a combination of sophistication and rebellion to one in which smokers are benighted addicts, suffering for their own moral failures. Sarah Milov’s breathtaking The Cigarette: A Political History explains how this happened. In telling this story, her narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state. Continue reading "The Cigarette and the State"

Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order

Thomas Poole, The Strange Death of Prerogative in England, 43 Univ WAL Rev 42 (2018).

As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.

One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself. Continue reading "Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order"

Have Institutional Review Boards (IRBs) Become ‘Compliance Bureaucracies’?

Sarah Babb, Regulating Human Research (2020).

Research ethics governance will never be the most popular subject in health law, but its importance is hard to overestimate. A significant amount of scientific research involves human participants, whether directly (interviews, observations, or experiments on human subjects) or indirectly (use of human tissue or data). In the absence of such research, our knowledge of human health would be much worse, and so too would our individual lives and collective well-being. Medical progress is contingent on scientific research.

Before almost all forms research involving human participants can take place, though, investigators must submit their project to a committee for review on the basis of ethical soundness and compliance with rules, standards, and principles (found in laws, guidelines, and other regulatory instruments). This committee is known as a Research Ethics Committee (REC) in some countries, like the United Kingdom. In the United States, it is known as an Institutional Review Board (IRB), as the board is connected to a particular institution, be it a university, hospital, or private organization. Continue reading "Have Institutional Review Boards (IRBs) Become ‘Compliance Bureaucracies’?"

Kinship at the Border

Paternity: The Elusive Quest for the Father is historian Nara B. Milanich’s fascinating new history on the quest for paternity across time and space. Paternity is at once a history of kinship that crosses borders and a meditation of kinship at borders. It reveals something that literature has long understood: that quests—including the quest for paternity, literary and actual alike—are less about what we find at their mythic end than about what we learn about ourselves along the way. It also shows that the quest for paternity, like all quests, raises more questions than resolves them.

At its most basic, Paternity is a history of paternity testing over time and around much of the globe. The bookends of Milanich’s project are the Charlie Chaplin paternity drama that rocked 1940s San Francisco at one end (Pp. 1-8), and contemporary American family law’s multi-faceted approach to paternity in an age of DNA testing and alternative reproduction at the other (Epilogue). In between, each of Paternity’s eight chapters features paternity disputes from different parts of the world at different points in time. Some of these disputes were motivated by a desire for money, as in the fairly common cases of inheritance lawsuits and child support actions. Others were prompted by a desire for citizenship, as in the case of Chinese immigration petitions in early-twentieth-century America. Still others grew from a will to live, as in the case of Jewish racial paternity trials in Nazi Germany. Continue reading "Kinship at the Border"

Functional Parents, Functional Constitutional Law

Douglas NeJaime, The Constitution of Parenthood, 72 Stan. L. Rev. 261 (2020).

For most of us who are parents, being permanently excluded from our children’s lives would be an unimaginable tragedy. Yet for non-biological parents—including many gay and lesbian parents—this outcome has long been a possibility.  Because at least one member of a same-sex couple typically lacks a biological relationship to their children, the legal status of such functional, but non-biological, parents has historically often been uncertain. Even today, in some states, such parents can be deemed “legal strangers” to their children—no matter how long the parental relationship, or how much the parent and child desire to preserve it. In these circumstances, a finding of lack of parental status is the equivalent of a termination of parental rights—but without any required showing of parental deficiency, and indeed even in the face of substantial likely harm to the child.

While the stakes of such parentage rights cases are high—adjudicating rights “far more precious than any property right”—they have, unlike LGBT marriage rights, primarily been addressed outside of the constitutional domain.  Even as LGBT advocates and scholars have quietly succeeded in transforming the family law landscape in many states with respect to non-biological parents, questions regarding the constitutional rights of such parents have remained mostly absent from constitutional debates about LGBT rights. Indeed, constitutional arguments have most often been raised in litigation by biological parents seeking to oppose the recognition of non-biological parents’ rights. As such, despite the outpouring of constitutional scholarship on issues of marriage equality, constitutional law as a discipline has had relatively little to say on the issue of non-biological parents’ rights.

In The Constitution of Parenthood, Douglas NeJaime takes up the work of making the case that the relationship of non-biological parents to their children ought to be afforded constitutional protection. As NeJaime notes, these constitutional arguments will not matter for all non-biological parents, some of whom already possess parental status under state family law.  Thus, some non-biological parents will find relief in state family law doctrines such as equitable parenthood or, in the wake of marriage equality, the marital presumption. Others may be able to obtain a step- or second-parent adoption, affording full secure parental rights.  But for those that fall outside of these family law protections—either because their state lacks them or because practical or financial considerations make them inaccessible—a backstop of constitutional protections remains vitally important. Continue reading "Functional Parents, Functional Constitutional Law"

Does Video Evidence Make A Difference in Excessive Force Cases?

In happier times, shortly before the vise of COVID-19 descended, I joined a conference room full of veteran defense attorneys from New Jersey and New York. The topic for the training convened by the National Association of Criminal Defense Attorneys and the Federal Defenders was missing body camera videos.  My co-panelist Benjamin West, a brilliant civil legal aid attorney, writer, and public defender, and the defense attorneys in the audience, had powerful accounts of battling for videos of contested police encounters that should have been available from the police but were missing, partial, or not disclosed.

An article I carried on the flight to share with the defenders was Mitch Zamoff’s study of the impact of police body camera evidence in excessive force cases. Unusual bedfellows, including civil rights activists, bereaved parents, and police leaders, drew together to call for police-worn body cameras. One of their hopes—and hypotheses in need of testing—was that video would provide powerful evidence in excessive force cases. Aiming to investigate that hypothesis, Zamoff’s study found another related, important issue. Nearly a third of body camera recordings in the cases he collected failed to capture the entire contested encounter. Summary judgment in favor of defendants was more likely to be granted if a complete recording is available than if there was no video available at all. The effect was the opposite where only a partial recording was available—plaintiffs were more likely to survive summary judgment than if there was no recording at all. Recordings matter—and the effect is modified by whether they are partial or complete. Continue reading "Does Video Evidence Make A Difference in Excessive Force Cases?"

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